11.5 In this chapter, the ALRC uses the term ‘cultural institutions’ to refer to libraries, archives, museums, galleries and public broadcasters.
11.6 The digital environment has continually changed the ways in which copyright materials are created, stored, preserved, published and consumed. In response to changing public expectations, cultural institutions have had to adapt their practices in order to fulfil their public missions of providing public access to cultural and historical knowledge.
11.7 These changing practices increasingly involve the digitisation and communication of collections in ways that conflict with emerging publishing platforms. As a 2008 report into the libraries and archives exceptions in the United States highlighted:
The use of digital technologies has served to blur somewhat the traditional roles of libraries and archives and rights holders. Libraries and archives can become ‘publishers’ in the sense that they have reproduction and distribution capabilities far beyond those provided by older, analog technologies. At the same time publishers, with their newly acquired abilities to create, manage, and provide access to databases of information, can now provide some of the functions that in the past were associated primarily with libraries and archives.
11.8 In the digital environment, two main issues face cultural institutions in fulfilling their public service missions: the preservation of materials in their collections and provision of access to the public.
11.9 The importance of digitisation and access to cultural knowledge and information has been recognised in government policy. As part of the National Cultural Policy Discussion Paper, the Australian Government highlighted that ‘changing community expectations of access and service have created additional areas of common interest, including education, interpretation, regional delivery and digitisation of collections’. The final report, Creative Australia, emphasised that:
The digitisation of our National Collections Institutions will change significantly. The digitisation of their collections and increasing online engagement, using the potential of the NBN, will exponentially increase the value and role of our national collections in telling Australian stories.
11.10 Consistent with these objectives, cultural institutions called for reforms to the Copyright Act to give them greater freedom to engage in:
- routine digitisation of collection material;
- digitisation and making public unpublished material (for example, on a museum’s website);
- digitisation and communication of non-Crown copyright material that forms part of government records;
- capturing and archiving Australian web content; and
- mass digitisation projects.
11.11 A key question for this Inquiry is whether the current exceptions for libraries and archives are working adequately in the digital environment to facilitate such uses in fulfilment of the National Cultural Policy, and whether further exceptions are required. While the ALRC’s Terms of Reference refer to ‘the general interest of Australians to access, use and interact with content in the advancement of education, research and culture’, the ALRC recognises that reform should acknowledge and respect authorship and creation.
Copyright Act 1968 (Cth) s 10 defines ‘archives’ to mean archival material in the custody of: the Australian Archives; the Archives Office of NSW; the Public Record Office; the Archives Office of Tasmania; or a collection of documents or other material of historical or public interest in custody of a body that does not operate or maintain the collection for the purposes of deriving a profit. The Act also refers to ‘key cultural institutions’ as being bodies administering libraries and archives under a law of the Commonwealth or State, or bodies prescribed by the regulations. The prescribed bodies include the Australian Broadcasting Corporation, Special Broadcasting Service Corporation and the Australian National University Archives Program: Copyright Regulations 1969 (Cth) sch 5.
 See A Christie, Cultural Institutions, Digitisation and Copyright Reform (2007), Intellectual Property Research Institute of Australia Working Paper No 9/07, 21–25 noting that digital technology has transformed libraries from traditionally holding analog works for physical access, to a 21st century-type institution that provides public access to digital representations of the cultural institutions ‘online and around the clock’.
The Section 108 Study Group Report (2008), 28.
 Many cultural institutions in Australia have statutory obligations to develop, maintain and provide wide access to their collections. See eg, National Sound and Film Archive Act 2008 (Cth); Archives Act 1983 (Cth); Australian War Memorial Act 1980 (Cth); National Library Act 1960 (Cth).
 Australian Government, National Cultural Policy Discussion Paper (2011), 6.
 Australian Government, Creative Australia: National Cultural Policy (2013), 100.
 Grey Literature Strategies Research Project, Submission 250; National Library of Australia, Submission 218.
 State Records South Australia, Submission 255; Grey Literature Strategies Research Project, Submission 250; CAMD, Submission 236; National Library of Australia, Submission 218; ADA and ALCC, Submission 213; National Archives of Australia, Submission 155.
 National Archives of Australia, Submission 155; CAARA, Submission 271.
 National Library of Australia, Submission 218.
 Art Gallery of New South Wales (AGNSW), Submission 111.
 See Ch 2.